Lifewatch: German Judges and Undue Burdens

I have been putting out the call for suggestions and counsel on the strategy of the Modest First Step, and from all parts of the country the calls and letters have come. One interesting call, bearing news as well as advice, came from an old friend in the pro-life movement, Richard Stith from Indiana.

Richard is one of those durable characters, who managed to preserve his pro-life views through a Ph.D. and J.D. at Yale. But he has been settled from a long while now as a professor of law at Valparaiso University. He has been a student of comparative law, and he has borne a special interest in the way that European countries have addressed the problem of abortion through the laws.

He called my attention to the decision of last year, in May 1993, when the Constitutional Court of Germany reaffirmed its celebrated judgment of 1975 on the protection of unborn children. In the early 1970s, the German parliament had removed the criminal penalties on abortion in the first 12 weeks of the pregnancy. When the issue came before the Constitutional court, the judges struck off a decision radically different from that of their counterparts in America in Roe v. Wade: The German court overturned the new statute in Germany as running counter to the principles and commitments of the Constitution in protecting human life.

In Stith’s paraphrase, the judges “maintained that if we think newborns inherently worthy of protection, the only normative theories available to us also require the protection of life even in the early weeks of pregnancy.” The vote on the Court was 6 to 2, but even the so-called “pro-choice” minority affirmed an understanding that could never have issued from the pens of William Brennan or Harry Blackmun: “The life of each individual human being is self- evidently a central value of the legal order. It is uncontested that the constitutional duty to protect this life also includes its preliminary stages before birth.”

After the unification of the two Germanys in 1989, a move was made to accommodate the policies of East Germany, which accepted and promoted abortion on demand in the first trimester. In an attempt at a compromise, abortion was declared to be “not unlawful” in the first 12 weeks of pregnancy. The only gesture of restraint was that the pregnant woman would be required to undertake a regimen of counseling, designed solely for “information,” and wait three days.

But the Court — standing here against the political demands of unification — struck down most of this policy in May of last year. In the judgment of the Court the policy was insufficiently protective of human life. As the majority wrote, the State has “a duty to place itself protectively before unborn life, shielding this life from unlawful attacks.” The judges preserved the old policy, in which abortions were permitted under certain grave conditions, threatening the life or impairing the health of the pregnant woman. The definition of gravity covered cases of rape and incest. But in all other cases, the judges insisted that abortion must remain unlawful (or rechtswidrig).

This was all, needless to say, buoying news, but it might have been news from another planet, so distant is it from the state of mind that grips judges and legislators in America. But Richard Stith called my attention to another part of the opinion, which might well be serviceable in our own politics of abortion. The German Court attached to its opinion a call for penal laws to punish people who seek to pressure women into having abortions — boyfriends, husbands, parents, employers.

Apart from all we have heard about “the woman’s choice,” the revelation has come from recent surveys that most women, in making their judgments, rely on the advice and wishes of those closest to them. Quite often, they choose abortion after the badgering of boyfriends and parents. If it appears that the right to abortion has been securely settled in the law — if it appears that the pro-life movement presents no threat any longer to the legality of abortion — many women may feel freer to look on this experience with eyes unclouded. What they may see then is a grim wave of surgeries, performed on women by men — and in many cases, at the urging and insistence of men, in the interests of men.

In H.L. Mencken’s famous dictum, people ought to get what they want — good and hard. If abortion has been sold to the country as “the woman’s choice,” then it may be quite consistent with the law to argue that it ought indeed be “the women’s choice”: The law may offer certain modest steps as a gesture toward assuring that the choice of the woman not be coerced. That may take the form of certain requirements of counseling, or even an inquiry to ask whether an attempt has been made to badger a woman into a choice. And of course, that inquiry should come from someone other than the agency of Planned Parenthood, which has a direct material interest in recommending this surgery. Either way, there may be provisions that seek to shelter a woman even from the subtle pressures that may be brought to bear by friends and close relatives.

Richard Stitch made one other suggestion in this vein to amplify or support the strategy of the Modest First Step. He reminded me of that provision lodged in the decisions of the Court through the insistence of Justice O’Connor: that no regulation impose an “undue burden” on the right of a woman to choose. Under this rule, the Court has upheld a waiting period of 24 hours. Stith suggests that this formula may provide an opening. The notion of an “undue burden” absorbs the sense of a physical strain connected with the pregnancy. But the partisans of abortion will usually try to broaden the definition of health to encompass mental health or emotional strain, and pro-lifers might use that lever quite as well.

In fact, one might use that notion of “undue burden” for the sake of placing into this formula the moral understanding of burdens that are justified or unjustified. With that move, one could appeal to understandings that command a wide consensus within the public. The argument could be made then that it is no “undue burden” on a pregnant woman to hold back from killing a baby on account of its blindness. And we know from the surveys that the public refuses to regard the “burden” of dropping out of school as the kind of burden that would be “undue” or too severe as the cost of preserving a human life. Of course, one may say that if the judges had understood this reasoning from the beginning, we would not be in our current situation. Yet the attitudes of the public remain, remarkably, as they have been, and we may simply need another device for bringing those understandings to bear on legislation, in a form that the courts may finally grasp — and sustain.

Richard Stith reminds us then of this telling point: Even under the terms established by the Supreme Court, there are still devices that allow citizens to bring, into courts and legislatures, the full range of moral reasoning that may be summoned over the issue of abortion.


  • Hadley Arkes

    Hadley P. Arkes (born 1940) is an American political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966.

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